John died; and observed, that it was fair to presume he had not died in England, as none of his family ever heard of his death. And as to the time, that it was incumbent on the jury to find the fact as well as they could under the doubt and difficulty of the case; that, at any time beyond the first seven years, they might fairly presume him dead; but the not hearing of him within that period was hardly sufficient to afford such a presumption. The jury found a verdict for the plaintiff, and that John died abroad about the years 1785, 1786, or 1787, but not before.

In Michaelmas term, 45 Geo. III. it was moved to set aside the verdict, and grant a new trial, on the ground that Frances, the daughter, was at most entitled to ten years for bringing her ejectment after she came of age, which was in 1792, even if she were not bound to have made her entry within ten years from the death of her brother, from whom she claimed.

In showing cause it was urged, the title of the lessor of the plaintiff Frances, did not accrue until the death of her brother, which the jury found was not before 1785; and the first clause of the statute of limitations gives every person twenty years to make their entry after their title first accrued. The second clause was evidently intended to extend, and not to limit, the time of entry allowed by the first; because in the particular cases, it allows ten years, notwithstanding [*67] the said twenty years be expired. The meaning,

therefore, was to allow every person at least twenty years after their title accrued, if there were a continuing disability from the death of the ancestor last seised, and ten years more to the heir of the person dying under a disability; which ten years are in addition to the twenty years allowed by the first clause. Where, indeed, the bar once begins to run, it may be presumed, in analogy to the decison on the statute of fines, 4 H. VII. c. 24. settled in Doe d. Duroure v. Jones, (a) that no sub

(a) Ante, 60:

sequent disability will stop it: but here the disability continued from the death of the person last seised until after the lessor's title accrued, and the time never began to run during the brother's life-time. In another view of the case, a difficulty was imposed upon the jury without necessity, in requiring them to find the exact period of the death of the brother of the lessor, which they could not properly do without evidence. It would have been sufficient for them to have found that he continued abroad till his death, and that he died within ten years before the ejectment brought. And if there were sufficient evidence before them to have raised that presumption, the court will not send the cause to a new trial, when the same verdict ought to be found.

The court did not hear counsel in support of the rule; but thought at any rate there must be a new trial.

Lord Ellenborough, Ch. J. The time allowed by the statute for making an entry might be indefinitely extended, if the construction contended for by the plaintiff were to be ad[*68] mitted. There is no calculating how far it *might be carried by parents and children dying under age, or continuing under other disabilities in succession. The brother, John, through whom the lessor of the plaintiff, Frances, claims, being under the disability of non-age at the time of the father's death, when his title first accrued, and dying under that disability, it appears to me that the proviso in the second clause of the statute (where resort is to be had to it to extend the period for making an entry beyond the twenty years) required the lessor Frances, as heir to her brother, to make her entry within ten years after his death; and that not having done so this ejectment was brought too late. The word death in that clause must mean and refer to the death of the person to whom the right first accrued, and whose heir the claimant is: and the statute meant that the heir of every person, to which person a right of entry had accrued during any of the disabilities there stated, should have ten years from the death of his ancestor, to

whom the right first accrued during the period of disability, and who died under such disability; (notwitstanding the twenty years from the first accruing of the title to the ancestor should have before expired.) As to the period when the brother might be supposed to have died, according to the statute 19 Car. II. c. 6. with respect to leases dependent on lives, and also according to the statute of bigamy, (1 Jac. I. c. 11.) the presumption of the duration of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from the time when they were last known to be living. Therefore in the absence of all other evidence to show that he was living at a later period, there was fair ground for the jury to presume that he was dead at the end of seven years from the time when he went to sea *on his second voyage, [*69] which seems to be the last account of him. That was about the year 1778, which would carry his death to about 1785.

Lawrence, J. Upon the death of the father Thomas Jesson, in 1777, the right descended to John, the son, then under age, who died under that disability. The lessor Frances is the heir of John; and the statute gives to the party to whom a right of entry accrues, and who is under a disability at the time, ten years after the disability removed, notwithstanding the twenty years should have elapsed after his title first accrued; and to his heir the statute gives ten years after the death of such party dying under the disability. Here more than ten years had elapsed after the death of the brother before this ejectment was brought. It appears probable enough, upon looking into the the case of Stawell v. Lord Zouch,(a) that the word death was introduced into the statute of James in order to obviate the difficulty which had arisen in that case upon the construction of the statute of fines, 4 H. VII. c. 24. for want of that word.

Grose and Le Blanc, Js. assenting, the rule was made absofute.

(a). Plowd. 358.

Of Actions on Contracts.—Exception concerning Merchants.

[1]SUCH accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, are

[1] In the case of Ramchander vs. Hammond (2 Johns. Rep. 202, 203,) The SUPREME COURT of the State of New-York said: "Our Statute of Limitations excepts "actions which concern the "trade of merchandise between merchants." These words are "not so broad as to warrant a departure from the adjudications "which have been made on the English act. These words, like "those of the statute of JAMES, must be confined to actions on "open or current accounts; they do not extend to accounts stated. It must be a direct concern of trade; liquidated demands, or bills "and notes, which are only traced up to the trade of merchan"dise, are too remote to come within this description."

Π

The Statute of Limitations is a bar to merchants, all accounts having ceased about six years. Barber vs. Barber, 18 Ves. Jun. Rep. 286. Sed vide Foster vs. Hodgson 19 Ves. Jun. Rep. 185, 186, where the question is discussed, but left undecided.

The saving in the 4th section of the Act of Limitations of Virginia, (1 Rev. Code, 488,) applies to the 7th section of the same act; by which, an action between merchant and merchant is neither barred by one year nor by five years. Moore vs. Mauro, 4 Rand. Rep. 488.

A. B. and C. entered into partnership in trade and merchandize in 1767, and continued business until May, 1774, when B. died and the partnership was thereby dissolved, and afterwards C. died in 1782, and A. in 1788, without the partnership accounts having been settled; and in 1794, the representatives of A. filed a bill in Chancery against the representatives of the other partners, for an examination and settlement of accounts, and for the payment of a balance claimed; the bill was dismissed, on account of the lapse of time, and the death of the parties, the Court considering it a stale demand. Ray & Al. vs. Bogart & Al. (In Error) 2 Johns. Cas. 432. & vide Ellison Survivor, &c. vs. Moffatt & Al. 1 Johns, Ch. Rep. 46.

excepted out of that clause, which enacts, that all actions of account, and upon the case, shall be commenced and sued within six years next after the cause of such action. This exception may be considered with respect to the parties, and the nature of the accounts. With respect to the parties, the exception extends to all merchants, as well inland, as to those trading beyond sea, though this has been doubted. (a) And it has also been extended to other tradesmen, and persons having mutual

(a) Chan. Cas. 152. 2 Saund. 126.

Where there is a joint purchase of goods, and one of the purchasers takes the whole stock of goods and agrees to account to the other for his share of them, or of the nett proceeds, and to charge no commission in case of sale, this is not a trade of merchandise between merchant and merchanttheirfactors and servants." within the meaning of the exception in the statute of limitations. And where a Bill in Equity was filed for an account against the party who had received and sold the goods, after a lapse of six years, the Statute of Limitations was held to be a good plea for it is not the case of technical trust, of which a court of Chancery has peculiar and exclusive jurisdiction. Nor are the defendants, in that sense, to be considered as trustees; for the Plaintiffs had a perfect remedy at law, against them. The statute, in such case, begins to run from the time the plaintiffs demanded their share of the goods or the proceeds; and the defendants having rendered an account of the sale, the right of action was then perfect. Murrays vs. Coster & Al. 20 Johns. Rep. 576, (In Error.) & vide same case (Coster & Al. vs. Murrays,) 5 Johns. Ch. Rep. 522, 531, in which the CHANCELLOR decided, that this case was not within the exceptions of the statute, but that it was a trust, & vide Murrays vs. Cos ter & Al. 4 Cow. Rep. 617, 627, 637. (In Error) where the decision in the same case (20 Johns. Rep. 576) is recognized and confirmed.

The account in behalf of one tenant in common against the co-tenant for perception of profits is within the Statute of Limitations. And the Court in the decree should not go back for a greater period than five year.s Coleman vs. Hutchenson, 3 Bibbs' Rep. 210.

The exception of the Maryland Statute of Limitations, in favour of "such accounts as concerns the trade or merchandise be"tween merchant and merchant, there factors and servants which "are not resident, within this province," applies to dealings between a merchant creditor residing out of Maryland and a debtor residing in Maryland. Bond & Al. vs. Jay, 7 Cranch Rep. 350.